Chapter1 Introduction
BLAW Summary
Chapter1 Introduction •
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Different kinds of law Non-legal rules Natural law Moral and religious law Custom National law: rules of conduct or organisation that are recognised, applied and enforced by the authority of the state How law regulates conduct Restrict the use of force Prohibit and punish particular kind of undesirable behaviour Permit or reward desirable behaviours Creation of rights and duties Trade-off between justice and predictability Constitution: Established in 1900 To change provisions of constitution needs: consent of Australian voters in national referendum Relevant state government able to change state constitutions: no need for referendum Self-governing territories: ACT, NT and NI Other territories governed directly by Commonwealth Although hereditary monarch is the head of state, state is governed according to the constitution Australian government=’representative democracies’ and ‘constitutional monarch’ Institutions of the government Crown: head of state/the queen queen’s representative at federal level=Governor-General at state level=Governor Executive Crown=Governor-General+ Governors Cabinet= Chief minister (appointed by the government of the day) +Senior ministers (appointed by chief minister) Legislatures: body with authority to make law Parliaments=Commonwealth+ state legislatures Commonwealth legislature=upper house (Senate) + lower house (house of representatives) State parliaments= upper house (legislative councils) + lower house (legislative assemblies in NSW, QSD, VIC, WA; Houses of assembly in SA, TAS) QSD and self-governing territories only have upper house! The courts Hearing for the first time= ‘original’ / ‘first instance’ 1
BLAW Summary
‘Jurisdiction’: power to hear and decide cases High court: 5-7 judges appointed by Governor-General; one of the judges=Chief Justice Superior court =supreme courts (in state and territory hierarchy); judges appointed by state Governor; territory judges appointed by executive branch of territory government; could sit as court of appeal Inferior court= intermediate courts ( ‘county’ or ‘district’ courts; judges appointed by state governments) + lower courts (‘Magistrates’; judges appointed by state governments) Local government: responsible to look after the social, economic, and environmental needs of their area Political parties: with majority of seats in the lower house of parliament=party of the day
Chapter2 Legislation • •
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Legislation=Act=Statute=enactment Legislative process 1. Proposal for new legislation by cabinet, experts draft the legislation-preparing explanatory memorandum- ‘Bill’ 2. House of Origin: often lower house 1) First reading: read by house member, no debate 2) Second reading: minister delivers speech, debate 3) Committee: consider the bill in detail 4) Third reading: rarely any debate 3. House of review If amendment-return to house of origin 4. Final stages 1) Royal assent 2) Publication 3) Commencement Repeal of legislation is the same process Financial bills must go through lower house first Structure of act Title Table of provision Notes Royal assent Purpose Commencement section Definitions section Other section Interpretation Literal approach: giving their ordinary meaning
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BLAW Summary Golden rule: use if literal approach gives an absurd result; choose a meaning consistent with the overall intent of the legislation Specially defined words: definition section ‘purpose’ approach: meaning that is consistent with the overall purpose of the Act Intrinsic: can be found in the Act (may be found in objects section, Act’s titles, heading, schedules) Extrinsic: can be found in Bills, speech, record of debate Presumptions Rules of natural justice Prospectively not retrospectively Legal rights may be enforced by instituting an action Legislature has power to enact laws that interfere with property rights Legislation don’t bind the Crown It’s constitutional Interpretations to favour the accused person
Chapter3 Case law •
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Civil law VS Criminal law Civil: between private persons: ‘plaintiff’ and ‘defendant’/ ‘applicant’ and ‘respondant’; in appeal cases ‘appellant’ and ‘respondant’ Procedure in a civil case The purpose of a trial Exchange of pleading: exchange of written documents in order to define the nature and extent of the dispute Proving the facts: each party provide facts and court ascertain fact Ascertaining the law: time for argument Deciding the case: judge writes ‘reasons for judgements’ When do judges have opportunity to make law? The rule that the judge want to apply may not previously been in Australian law Meaning of existing law is uncertain and unclear An existing law seems appropriate, but hasn’t previously been applied to the case being decided: judge can extend the application of the law No existing law at all: judge must decide the case on its fact What are common law and Equity? Case law= General law = common law + Equity Common law: more strict, forms most of case law Equity: justice and fairness No longer separate common law courts and courts of equity System of courts in Australia High court (5-7 judges)>court of appeal (3-5 judges)>supreme (1judge)>district>magistrates Note: 3
BLAW Summary
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Commonwealth no criminal appeal, no lower court NSW, TAS and NT has court of appeal Tas, ACT, NT, NI no district court Judges’ power to make law Doctrine of precedent (stare decisis): requiring a judge who is deciding a new case should decide it in the same way that similar cases have been decided in the past Binding precedents ✓ The material facts of the two cases are sufficiently similar and cannot reasonably be distinguished ✓ Previous decision is a decision of superior court in the same court hierarchy Persuasive precedents: if one of the requirements is not met Ratio decidendi (reason for decision): the binding part of a previous decision 1) Material facts 2) Precise of rule of law that’s been applied Obiter dicta (surrounding words): incidental or supplementary onion by a judge in deciding a case, upon a matter not essential to the decision, and therefore not binding as precedent Law reports: a written record of decisions Parts of law reports: 1) The court and key dates: earlier date is when the court heard argument, later date is when judgement was given 2) The name of case: Plaintiff v Defendant 3) Catchwords: key words and phrases used in a law report (written by the publisher) 4) Headnotes: summary of facts of the case and statement of the issues under consideration (written by the editor) 5) The judges: LJ is not Australian judge, WLR 6) Judgements Citing Medium neutral citations: e.g. Cohen v Cohen (1929) HCA 15 (it’s not published in a law report, it’s file no. 15 of High Court of Australia)
Chapter5 Making a contract •
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Who doesn’t have the capacity to contract? Under 18s Unless getting ‘necessities’ or agreements that are for their benefit If contract involves a ‘continuing obligation’, a minor can avoid it before 18 or within a reasonable time after turning 18 Mental disability Effect of intoxicating drugs Insolvency Non-contractual agreements= not enforceable Social agreements 4
Chapter1 Introduction •
•
• •
•
Different kinds of law Non-legal rules Natural law Moral and religious law Custom National law: rules of conduct or organisation that are recognised, applied and enforced by the authority of the state How law regulates conduct Restrict the use of force Prohibit and punish particular kind of undesirable behaviour Permit or reward desirable behaviours Creation of rights and duties Trade-off between justice and predictability Constitution: Established in 1900 To change provisions of constitution needs: consent of Australian voters in national referendum Relevant state government able to change state constitutions: no need for referendum Self-governing territories: ACT, NT and NI Other territories governed directly by Commonwealth Although hereditary monarch is the head of state, state is governed according to the constitution Australian government=’representative democracies’ and ‘constitutional monarch’ Institutions of the government Crown: head of state/the queen queen’s representative at federal level=Governor-General at state level=Governor Executive Crown=Governor-General+ Governors Cabinet= Chief minister (appointed by the government of the day) +Senior ministers (appointed by chief minister) Legislatures: body with authority to make law Parliaments=Commonwealth+ state legislatures Commonwealth legislature=upper house (Senate) + lower house (house of representatives) State parliaments= upper house (legislative councils) + lower house (legislative assemblies in NSW, QSD, VIC, WA; Houses of assembly in SA, TAS) QSD and self-governing territories only have upper house! The courts Hearing for the first time= ‘original’ / ‘first instance’ 1
BLAW Summary
‘Jurisdiction’: power to hear and decide cases High court: 5-7 judges appointed by Governor-General; one of the judges=Chief Justice Superior court =supreme courts (in state and territory hierarchy); judges appointed by state Governor; territory judges appointed by executive branch of territory government; could sit as court of appeal Inferior court= intermediate courts ( ‘county’ or ‘district’ courts; judges appointed by state governments) + lower courts (‘Magistrates’; judges appointed by state governments) Local government: responsible to look after the social, economic, and environmental needs of their area Political parties: with majority of seats in the lower house of parliament=party of the day
Chapter2 Legislation • •
•
•
Legislation=Act=Statute=enactment Legislative process 1. Proposal for new legislation by cabinet, experts draft the legislation-preparing explanatory memorandum- ‘Bill’ 2. House of Origin: often lower house 1) First reading: read by house member, no debate 2) Second reading: minister delivers speech, debate 3) Committee: consider the bill in detail 4) Third reading: rarely any debate 3. House of review If amendment-return to house of origin 4. Final stages 1) Royal assent 2) Publication 3) Commencement Repeal of legislation is the same process Financial bills must go through lower house first Structure of act Title Table of provision Notes Royal assent Purpose Commencement section Definitions section Other section Interpretation Literal approach: giving their ordinary meaning
2
BLAW Summary Golden rule: use if literal approach gives an absurd result; choose a meaning consistent with the overall intent of the legislation Specially defined words: definition section ‘purpose’ approach: meaning that is consistent with the overall purpose of the Act Intrinsic: can be found in the Act (may be found in objects section, Act’s titles, heading, schedules) Extrinsic: can be found in Bills, speech, record of debate Presumptions Rules of natural justice Prospectively not retrospectively Legal rights may be enforced by instituting an action Legislature has power to enact laws that interfere with property rights Legislation don’t bind the Crown It’s constitutional Interpretations to favour the accused person
Chapter3 Case law •
•
•
•
•
Civil law VS Criminal law Civil: between private persons: ‘plaintiff’ and ‘defendant’/ ‘applicant’ and ‘respondant’; in appeal cases ‘appellant’ and ‘respondant’ Procedure in a civil case The purpose of a trial Exchange of pleading: exchange of written documents in order to define the nature and extent of the dispute Proving the facts: each party provide facts and court ascertain fact Ascertaining the law: time for argument Deciding the case: judge writes ‘reasons for judgements’ When do judges have opportunity to make law? The rule that the judge want to apply may not previously been in Australian law Meaning of existing law is uncertain and unclear An existing law seems appropriate, but hasn’t previously been applied to the case being decided: judge can extend the application of the law No existing law at all: judge must decide the case on its fact What are common law and Equity? Case law= General law = common law + Equity Common law: more strict, forms most of case law Equity: justice and fairness No longer separate common law courts and courts of equity System of courts in Australia High court (5-7 judges)>court of appeal (3-5 judges)>supreme (1judge)>district>magistrates Note: 3
BLAW Summary
•
•
Commonwealth no criminal appeal, no lower court NSW, TAS and NT has court of appeal Tas, ACT, NT, NI no district court Judges’ power to make law Doctrine of precedent (stare decisis): requiring a judge who is deciding a new case should decide it in the same way that similar cases have been decided in the past Binding precedents ✓ The material facts of the two cases are sufficiently similar and cannot reasonably be distinguished ✓ Previous decision is a decision of superior court in the same court hierarchy Persuasive precedents: if one of the requirements is not met Ratio decidendi (reason for decision): the binding part of a previous decision 1) Material facts 2) Precise of rule of law that’s been applied Obiter dicta (surrounding words): incidental or supplementary onion by a judge in deciding a case, upon a matter not essential to the decision, and therefore not binding as precedent Law reports: a written record of decisions Parts of law reports: 1) The court and key dates: earlier date is when the court heard argument, later date is when judgement was given 2) The name of case: Plaintiff v Defendant 3) Catchwords: key words and phrases used in a law report (written by the publisher) 4) Headnotes: summary of facts of the case and statement of the issues under consideration (written by the editor) 5) The judges: LJ is not Australian judge, WLR 6) Judgements Citing Medium neutral citations: e.g. Cohen v Cohen (1929) HCA 15 (it’s not published in a law report, it’s file no. 15 of High Court of Australia)
Chapter5 Making a contract •
•
Who doesn’t have the capacity to contract? Under 18s Unless getting ‘necessities’ or agreements that are for their benefit If contract involves a ‘continuing obligation’, a minor can avoid it before 18 or within a reasonable time after turning 18 Mental disability Effect of intoxicating drugs Insolvency Non-contractual agreements= not enforceable Social agreements 4
